Terms and conditions of sale and delivery
These terms and conditions are part of all our offers, sales and deliveries in which Intermarc BV acts as the seller. Departures from, amendments to or modifications of these general terms and conditions are only valid if Intermarc BV specifically accepts such departures, amendments or modifications in writing. Should any article of these general terms and conditions become not applicable or invalid for any reason whatsoever, all other articles of same general conditions and terms will remain in force.
All our offers of sale are without any obligations from our side. Purchase orders can only be accepted / confirmed by means of our written sales confirmations. Such acceptance results into a contract, where our general terms and conditions always overrule the Buyer’s terms and conditions. In the absence of a formal purchase order, the contract is to be considered as fulfilled at the time of physical delivery.
Unless agreed otherwise, all our prices are nett prices, excluding VAT and packaging. All our prices are based on foreign exchanges, import duties, purchase prices and all other costs which can influence directly and indirectly the cost price. Should any of these cost factors change after the conclusion of a contract but prior to delivery, Intermarc has the right to adapt its price accordingly.
• All deliveries will be effected according to the latest Incoterms 2000 as specified in our sales confirmation, unless otherwise agreed.
• Delivery dates as stated in the sales confirmation are indicative. Intermarc will do its utmost to adhere to the delivery dates as stated in the sales confirmation, however Intermarc will not be responsible for any direct or indirect losses as a result of a delayed delivery. A delayed delivery as such is no valid reason for the Buyer to cancel the contract.
• If the Buyer requests a delayed delivery Intermarc has either the right to pass on to the Buyer all the costs which are related to such a delayed delivery or the right to cancel the contract.
• If the Buyer requests a cancellation of the contract Intermarc has the right to pass on all direct and indirect costs and damages resulting from this cancellation.
5. INSPECTION – DISCHARGE – UNLOADING
Prior to discharge / unloading at Buyer’s facility, Buyer will do all necessary tests to verify that the goods are conform the specifications as laid down in the contract. Intermarc shall not be liable for any direct / indirect costs and / or damages resulting from Buyer’s failure to perform such tests prior to unloading at Buyer’s facility. Notwithstanding Buyer’s obligation to inspect the goods prior to discharge / unloading, Buyer will ensure a swift unloading of the goods upon arrival at its facility to a reasonable extent which is common according to general practice. Intermarc has the right to get a reimbursement from the Buyer for all costs that might arise out of a delayed discharge / unloading. If goods are not conform the specifications as laid down in the contract Buyer will immediately inform Intermarc. Once Buyer discharges the goods at its facility, Buyer is deemed to have accepted the goods.
Deliveries of packed goods:
Prior to usage but within 5 working days after discharge of the delivered goods at Buyer’s facility, Buyer will do all necessary tests to verify that the goods are conform the specifications as laid down in the contract. Intermarc shall not be liable for any direct / indirect costs and / or damages resulting from Buyer’s failure to perform such tests prior to usage but within 5 working days from delivery at Buyer’s facility. Buyer will ensure a swift discharge / unloading of the goods upon arrival at its facility to a reasonable extent which is common according to general practice. Intermarc has the right to get a reimbursement from the buyer for all costs that might arise out of a delayed discharge / unloading. Buyer’s failure to inspect goods within 5 days from discharge and / or buyer’s failure to report potential non conformities after inspection immediately results in acceptance of the goods. Once Buyer uses the goods, Buyer is deemed to have accepted the goods.
Intermarc guarantees that at the time of delivery the goods shall only meet the specifications as mentioned in Intermarc’s sale confirmation. Intermarc never guarantees application possibilities and / or fitness for particular / specific use, merchantability or otherwise of its products. In no event Intermarc shall be liable for goods that meanwhile been fully or partially consumed, changed from their original form, commingled by the Buyer and / or resold by the Buyer. With the exceptions of gross negligence and malice aforethought Intermarc is never responsible for damage as a result from work undertaken by Intermarc and or third parties during the execution of the contract. With the exceptions of gross negligence and malice aforethought Intermarc is never responsible for its staff and staff of third parties involved during the execution of the contract.. Under all circumstances Intermarc is not responsible for any consequential damage or indirect loss no matter how arising. Intermarc’s liability will never exceed the invoice value of the delivered goods, calculated as per contract. Intermarc has the option to replace the off specification goods within a reasonable amount of time, whereby Intermarc always has the option to repossess the goods originally delivered. Furthermore Intermarc has the option to allow the Buyer to purchase replacement goods, whereby Intermarc shall pay the potential reasonable price difference between the price of the originally delivered goods and the price of the replacement goods to the Buyer and visa versa. In such event Intermarc’s liability will cease to exist.
Intermarc shall not be liable in damages or otherwise for any failure or delay in performance of any obligation hereunder, where such failure or delay is caused by force majeure, being any event, occurrence or circumstances reasonably beyond the control of Intermarc, including without prejudice to the generality of the foregoing, failure or delay caused by or resulting from acts of god, strikes, fires, floods, wars (whether declared or undeclared) riots, destruction of the goods, delays of carriers due to breakdown or adverse weather, perils of the sea, embargoes, accidents, restrictions imposed by any governmental authority (including allocations, priorities, requisitions, quotes and price controls), lack of raw materials, production stops, partial or complete breach of contract of Intermarc’s suppliers whose goods and / or services must be used to execute the contract and any other condition which Intermarc could not have foreseen and which Intermarc cannot influence. In such event Intermarc shall immediately notify the other party hereto indicating the nature of such cause and to the extent possible, inform the other party of the expected duration of the force majeure event. In such event Intermarc always has the option to cancel the contract.
Claims can only be considered by Intermarc if Buyer notifies Intermarc in writing within 6 working days from delivery date. Failure to do so will terminate Intermarc’s liability. In the event of a claim Buyer will enable Intermarc to inspect the goods before they are used and / or processed and / or discharged (bulk deliveries). Such inspection will be executed by an independent inspection and survey company which is acceptable to both parties. The results of such inspection are to be final and binding for both parties.
All payments to be received according to the payments terms of Intermarc’s sales confirmation and as stated on Intermarc’s invoice. Intermarc may at any time request the Buyer to provide an acceptable payment security. Under all circumstances the Buyer may never withhold any payment or claim any right of deduction or off-set against any payment under the contract. Without prejudice to Intermarc’s other rights and remedies, the Buyer shall pay to Intermarc cumulative intrest on all overdue sums at an intrest rate of Libor plus 5 %. All collection charges are for the account of the Buyer. If Buyer defaults on payment of any receivable on due date, Intermarc has the right to postpone deliveries under each pending contract or to cancel each pending contract. All costs and / or direct / indirect damages related to such postponement or cancellation will be for Buyer’s account. In the case of default on payment of any receivable at the due date, the Buyer must return forthwith to Intermarc all merchandise unpaid for.
Notwithstanding the foregoing, the consequence of such a default shall also be that all other claims against the Buyer shall become immediately due and payable, and all terms previously granted for payment of other claims, invoices or receivables or other credit arrangements shall be cancelled automatically and with immediate effect.
10. RETENTION OF TITLE
The goods are to remain property of Intermarc until all receivables, including but not limited to
receivables of all goods whatsoever supplied, receivables for all services rendered, incidental receivables and receivables for damages have been paid in full. The Buyer shall permit the servants or agents of Intermarc to enter on to the Buyer’s premises and repossess the goods at any time prior thereto. As long as payment has not been effected the Buyer cannot sell, pledge or offer goods as guarantee or collateral security to any party. Should the goods (or any of them) be converted into a new product, whether or not such conversion involves the admixture of any other goods or thing whatsoever and in whatever proportions, the conversion shall be deemed to have been effected on behalf of Intermarc and Intermarc shall have the full and legal and beneficial ownership of the new products, but without accepting any liability whatsoever in respect of such converted goods in relation to any third party, and the Buyer hereby indemnifies Intermarc in relation thereto.
All contracts shall be governed by Dutch Law with exclusive jurisdiction in the Dutch Court of Rotterdam without recourse to arbitration.
12. OTHER CONDITIONS
• Buyer is never entitled to transfer their rights and / or obligations under a contract to a third party without Intermarc’s written approval.
• All amendments and additions to a contract are valid only if they are made in writing and signed by both parties
• Intermarc has the right to postpone deliveries under each pending contract or to cancel each pending contract if the economical situation of the Buyer or the securities which he has given either change or detoriate to such a degree that Intermarc considers these to jeopardize the payment of any receivable. This can be assumed particularly when the Buyer refuses to pay or is insolvent, when a petition in bankruptcy is being filed against the Buyer for payment of creditors or collateral security, when a interim junction is being effected or the judicial compensation procedure or petition in bankruptcy are being applied for or opened, or when the Buyer makes a dissolution order or is dissolved by law.